Atlanta & W.P.R. Co. v. Hudson

• Decision Date: 15 May 1905
• Citation: 51 S.E. 29,123 Ga. 108
• Parties: ATLANTA & W. P. R. CO. v. HUDSON.
• Court: Georgia Supreme Court

51 S.E. 29

123 Ga. 108

ATLANTA & W. P. R. CO. v. HUDSON.

Supreme Court of Georgia

May 15, 1905

Syllabus by the Court.

Except where a particular act is declared to be negligence, either by statute or by a valid municipal ordinance, the question as to what acts do or do not constitute negligence is for determination by the jury, and it is error for the presiding judge to instruct them what ordinary care requires should be done in a particular case.

Language used by the Supreme Court in deciding a case before it especially where used in discussing the facts of such case is often inappropriate for use by the judge of a trial court in charging the jury.

In an action against a railroad company for the killing of cattle it was error for the presiding judge to instruct the jury that if they should find, from the evidence, that the defendant "did use all the means at its command, after the cattle were discovered on the track, or so near thereto as the court has already charged you, and exercised all ordinary care and reasonable diligence to prevent the train from running over the cattle," the presumption arising from proof of killing the cattle would be rebutted. The requirement that the company should use "all the means at its command" was more stringent than the law provides.

Error from City Court of La Grange; D. J. Gaffney, Judge pro hac.

Action by A. C. Hudson against the Atlanta & West Point Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

Dorsey, Brewster & Howell and O. H. Thompson, for plaintiff in error.

J. R. Terrell and F. P. Longley, for defendant in error.

LUMPKIN, J. (after stating the facts).

1, 2. Several charges of the court were alleged as error, on the ground that they undertook to instruct the jury what acts ordinary care required the employés of the company to do. In one instance he charged as follows: "You will look to all these questions under the evidence in this case to determine the truth of the same for yourselves, for the law imposes the duty on the railroad company to maintain a lookout to discover cattle on its track, to stop its train as soon as cattle appear upon its track, or in the act of approaching it, or so near to the same that a slight change of position by them would result in their destruction or injury." This was error. "In the trial of an action in a court of this state for a negligent tort, it is error for the court to tell the jury what facts do or do not constitute negligence, unless there is a statute or valid municipal ordinance which in terms or in effect declares the act referred to to be negligence." Savannah, Florida & Western Ry. Co. v. Evans, 115 Ga. 315, 316, 41 S.E. 631, 90 Am.St.Rep. 116.

That the Supreme Court may employ certain language in discussing a case, especially in regard to the facts under consideration does not necessarily render such language proper for use by the judge of a trial court in charging a jury. A justice of the Supreme Court, in giving reasons for a...